ENTERTAINMENT LAW REPORTER RECENT CASES United States Supreme Court reverses decision up- holding jury award of $200,000 in damages to Rev- erend Jerry Falwell for emotional distress allegedly caused by parody advertisement in Hustler Magazine The United States Supreme Court, in an 8-0 ruling, has found that the Reverend Jerry Falwell was not entitled to recover $200,000 awarded him by a Federal District Court jury for intentional infliction of emotional distress allegedly caused by the publication of a parody adver- tisement in Hustler Magazine. Chief Justice Rehnquist noted that the November 1983 issue of Hustler featured, on its inside front cover, a "parody" of an advertisement for Campari Liquor. The VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER ad, entitled "Jerry Falwell talks about his first time," in- cluded Falwell's name and picture and an "interview" in which Falwell purportedly stated that his "first time" was, as described by Justice Rehnquist, during "a drunken incestuous rendezvous with his mother in an outhouse." The magazine printed a disclaimer in small print at the bottom of the page stating "ad parody - not to be taken seriously," and the table of contents listed the ad as "Fiction; Ad and Personality Parody." Falwell sued Hustler and its publisher Larry Flynt seeking damages for libel, invasion of privacy and inten- tional infliction of emotional distress. Hustler obtained a directed verdict on the invasion of privacy cause of ac- tion. The jury rejected Falwell's libel claim, but awarded him $100,000 in compensatory damages and $100,000 in punitive damages on the claim for intentional inflic- tion of emotional distress. VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER A Federal Court of Appeals affirmed the judgment, and denied Flynt's petition for a rehearing en bank (ELR 9:1:15; 6:9:20). Justice Rehnquist first stated that the standard set forth in New York Times Co. v. Sullivan, 376 U.S. 254 (1964), would serve to provide the "breathing space" re- quired for speech concerning public figures by allowing such individuals to recover for libel or defamation "only when they can prove both (emphasis by the court) that the statement was false and that the statement was made with the requisite level of culpability." Falwell had argued that a state's interest in preventing the emotional distress suffered by a person who is the subject of an offensive publication did not require a de- termination of whether the "outrageous" statement was a fact or an opinion, or whether it was true or false. Justice Rehnquist rejected this view, stating that "in the area of public debate about public figures," the First VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER Amendment prohibits considering a speaker's intent to inflict emotional distress. It was observed that "from the early cartoon portraying George Washington as an ass down to the present day, graphic depictions and satirical cartoons have played a prominent role in public and po- litical debate." The Hustler parody might not be closely related to the political cartoons of Thomas Nast and oth- ers. But the outrageousness" of the piece did not provide a standard which would avoid the possibility of having a jury impermissibly impose liability on the basis of the jurors' tastes or views, or on the basis of their dislike of a particular expression. The Hustler parody advertisement was not governed by any exception to First Amendment principles, such as those for obscene speech or "fighting words," stated Justice Rehnquist. It therefore was held that public fig- ures and public officials may not recover for the tort of intentional infliction of emotional distress against VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER publishers of material such as the parody at issue unless they show that the publication contains a false statement of fact which was made with "actual malice," i.e. with knowledge that the statement was false or with reckless disregard as to whether or not it was true. The jury's conclusion that Hustler engaged in outrageous conduct could not be the basis for an award of damages in this case, and the judgment of the Court of Appeals was reversed. Justice White, in a concurring opinion, stated that the decision in New York Times v. Sullivan had "little to do" with this case since the jury found that the parody advertisement contained no assertion of fact. But Justice White agreed that the First Amendment required the re- versal of the Court of Appeals judgment because penal- izing the publication of the parody violated the First Amendment. VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER Hustler Magazine v. Falwell, Case No.86-1278 (U.S.Sup.Ct., Feb. 24, 1988) [ELR 9:10:3] ____________________ Federal District Court in California refuses to enjoin publication of "The Blue Bicycle" during pendency of action alleging that the novel infringed "Gone With The Wind" A Federal District Court in California has refused to grant preliminary injunctive relief to Trust Company Bank, the trustee acting on behalf of the owners of the renewal copyright in Margaret Mitchell's novel "Gone With The Wind," in a copyright infringement action against The Putnam Publishing Group and other publish- ing parties. Trust Company Bank claimed that the novel "The Blue Bicycle," written by Regine DeForges and first VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER published in France in 1981, was a "remake" of Gone With The Wind. The trustee claimed that The Blue Bi- cycle transposed the characters and events of the Mitchell novel from Georgia during the Civil War to France during World War 11. DeForges' work was pub- lished in a hardcover English language version by Lyle Stuart, Inc. in May or June of 1986. Berkley Publishing Corp., a wholly-owned subsidiary of The Putnam Pub- lishing Group, acquired the soft-cover rights to the work, and scheduled a December 1987 publication date. Judge Alicemarie H. Stotler determined that Trust Company Bank and Macmillan, Inc., the exclusive li- censee of the worldwide English language publication rights in Gone With The Wind, did not establish a strong likelihood that they would prevail on the merits of their claim, or that the continued distribution of The Blue Bi- cycle would cause them irreparable harm. In Findings of Fact and Conclusions of Law, Judge Stotler first noted VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER that a remake or adaptation of an earlier work does not necessarily infringe that work, and that a court still must review the alleged similarities between the works. The trustee was likely to prevail on the "extrinsic" test aspect of substantial similarity, stated Judge Stotler, i.e., a trier of fact would be likely to find that the general ideas of Gone With The Wind and The Blue Bicycle were substantially similar. However, with respect to the substantial similarity of underlying protectible expression, (the "intrinsic" or "audience" test) Judge Stotler declared that Trust Com- pany Bank did not establish a strong likelihood that it would prevail. The books were set in different eras and locations. And, although there were "similarities and parallels" between the major characters in the works and in the interrelationships between the characters, signifi- cant differences also were present, leading the court to conclude that the "total concept and feel" of the two VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER works was not substantially similar, and that the ulti- mate trier of fact would not likely find substantial simi- larity of protectible expression. Even if a likelihood of infringement had been shown, the court concluded that any presumption of irreparable harm was rebutted by The Blue Bicycle parties. Trust Company Bank and Macmillan allowed a "lengthy de- lay" prior to seeking injunctive relief after they first learned of the DeForges work in November 1984. Fur- thermore, stated Judge Stotler, the only potential harm from the continued distribution of The Blue Bicycle might be that readers would purchase the work instead of Gone With The Wind; monetary damages would ade- quately compensate for any such harm. It also was found that the balance of hardships in the case tilted "heavily" in favor of The Blue Bicycle par- ties, particularly Berkley in view of the company's $200,000 investment in the novel, projected sales of VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER over $300,000, and potential loss of book store shelf space and goodwill among wholesalers and retailers. Judge Stotler, in refusing to enjoin, during the pendency of the action, all promotion, distribution and sale of The Blue Bicycle, or to issue a writ of seizure as to all cop- ies of the work, concluded that enjoining the publication of The Blue Bicycle would not serve the public interest, and that the delay by Macmillan and the trust company in bringing a lawsuit barred preliminary injunctive relief. Trust Company Bank v. The Putnam Publishing Group, Inc., Case No. CV87 07393 (C.D.Ca., Jan. 4, 1988) [ELR 9:10:3] ____________________ VOLUME 9, NUMBER 10, MARCH 1988 ENTERTAINMENT LAW REPORTER Idea of featuring black family in television series was not sufficiently novel to support NBC employees claims against network with respect to "The Cosby Show" In October 1987, the Entertainment Law Reporter (9:5:3) published a commentary by Alan J. Hartnick about a lawsuit in which Hwesu S. Murray claimed that the National Broadcasting Company, Brandon Tartikoff, President of NBC Entertainment, The Carsey-Werner Co., and Marcia Carsey and Thomas Werner based the television series "The Cosby Show" on an idea that Murray submitted to NBC.